A Quality of Justice Worthy of Preservation

By Leo I. Brisbois

Boozhoo Niijii; Gdinimikoon. Hello, Friend; I greet you in a good way.

The Ojibwe/Anishinaabe people received “seven teachings of the grandfathers”—niizhwaaswi kchitwaa kinomaadiwinan—to guide them in life, and among them were wisdom (nbwaa kaa win), humility (dbaa dendi ziwin), respect (mnaa dendi mowin), truth (deb we win), and honesty (gwek waadi ziwin). These teachings aid theOjibwe/Anishinaabe in “making decisions in the right way”—gwaya kochi gewin—in a selfless way for the greater good.

With the July seating of Senator Al Franken, the “Coleman/Franken Senate Recount” is now a part of political history. As a Minnesota voter and attorney who followed the entire post-election process, it was most gratifying, without any regard to the ultimate outcome, to see how respectfully, professionally and impartially the Minnesota jurists involved, at all levels, so well served their fellow citizens.

In his “Essays—of Judicature,” the English lawyer, Francis Bacon, Sr. (1561 – 1626) said: “Judges ought to be more learned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”

All of the jurists involved in the Recount process1 undeniably labored in all ways and at all times commensurate with the aspirational judicial qualities laid out by Bacon. One might note how closely Bacon’s qualities of a judge mirror the Ojibwe/Anishinaabe’s “teachings of the grandfathers,” and rightly conclude thereby, that by their impartial, nonpartisan deliberations, our state court jurists involved in the Recount process were “making decisions in the right way”—gwaya kochi gewin.

Minnesotans can and should rightfully be exceedingly proud of and feel secure in their trust and confidence in the present quality and character of their judges. However, the public’s current high level of trust and confidence in the impartial and nonpartisan character of Minnesota’s judiciary is a fragile treasure which may be easily and readily lost. In the wake of the U.S. Supreme Court’s decision in Republican Party of Minnesota vs. White, (June 2002), highly partisan, special-interest-money-driven, negative campaigns for judicial office loom in Minnesota’s future; unless of course, we, as a profession and as a broader community, take action to protect and preserve the public’s trust and confidence in fair and impartial courts. One need only look to our sister state, Wisconsin, to see a glimpse of our future if we should fail to act.

Wisconsin has recently and repeatedly endured highly partisan, money-driven, and especially negative judicial campaigns which can only erode the public’s trust and confidence in a court’s impartiality.2 There is something, however, that can be done to preserve the impartial state courts that now serve Minnesotans.

In 2008 and 2009, bills were introduced in the Minnesota Legislature,3 and will be introduced again in 2010, proposing a constitutional amendment to protect the impartiality of our state courts. The amendment would replace the current contested judicial election system—which is too susceptible to all of the adverse consequences of highly partisan, money-driven, negative campaigns like those seen in Wisconsin—with a merit selection/retention election process. Initially, judicial vacancies would be filled by merit selection, and thereafter, judges would undergo performance evaluations during their term with the results made available to inform the public who would vote on whether individual judges should be retained to serve another term.

We must work hard in the present to insure for the future that our state courts, as in the “Coleman/Franken Senate Recount” process, are able to continue “making decisions in the right way”—gwaya kochi gewin—decisions based not on partisanship or allegiance to special interests, but instead, decisions born out of the qualities of wisdom, humility, respect, truth and honesty.

Since June 2007, the MSBA has supported efforts to get the proposed constitutional amendment regarding merit selection/retention election of state court judges onto the ballot to give all Minnesotans a say on this vital question affecting the future for ourselves, our children, and our children’s children. With the help of our members, the MSBA will again work hard to support this important initiative during the coming bar year.